Judge says no to Act 46 challenge

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WINDHAM COUNTY — A Franklin County Superior Court judge dealt another blow Friday to about three dozen Vermont school districts and towns that are fighting the forced mergers of school administrations under Act 46. But Judge Robert Mello, in a split decision issued Friday, said the matters were of "great" concern to Vermonters, and he said he expected the case would head immediately to the Vermont Supreme Court.

Mello noted that many of the towns and school districts face a June 30 deadline.

"The issues in this case are of unusually great statewide importance, and the time available to review and decide them is very limited," Mello wrote in his conclusion in the 13-page ruling. "The Legislature has given the school districts only until June 30th to complete the mergers called for by the Board of Education. Under these circumstances, this court would be remiss were it not to afford the Supreme Court an opportunity to consider these weighty issues as much in advance of that deadline as possible," he added.

Mello's decision was split — agreeing with the Vermont Attorney General's office, which had argued in support of the state Board of Education's decision forcing mergers on several reluctant school districts, including Westminster, Grafton and Athens, and Windham. Other schools in Windham County had reluctantly followed the organizational steps.

"There appears no just cause for delaying appeal of these determinations," Mello wrote. "Consideration of these issues by the Supreme Court may result in refinal resolution of some or all plaintiffs' claims, without the need for further delay and discovery," he added.

Mello dismissed three of the six counts of the school districts' lawsuit, which was filed in December 2018. The judge dismissed claims by the school districts that the forced mergers ordered by the state Board of Education violated the Vermont Constitution by delegating authority, with Mello saying that was within the Legislature's power.

But the judge let the challenges over the issue of debts and assets of the individual school district remain for further litigation, including the challenge under the Vermont Constitution's 'common benefits' clause.

The school districts have argued that towns were being forced to assume the debts of other school districts, without a vote. Mello also let the challenge claiming the state Board of Education violated the true intent of Act 46, and acted in an "arbitrary and capricious" way, to remain.

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Mello had previously rejected the alliance of the school districts' request for a preliminary injunction against the merger deadlines.

Ines McGillion, a Putney attorney who is helping to litigate the case, said the legal team for the school districts would be studying Mello's decision and deciding what their next step should be.

"Right now the legal team has to decide what is our best posture for getting it before the (Vermont) Supreme Court," she said.

She said the school districts' lawyers had to decide whether to wait for a hearing on the merits of the remaining issues that Mello did not dismiss. She said Mello had told the attorneys during a recent hearing that he was going to dismiss the administrative law claims, so she said his decision did not contain a real surprise. She said a key remaining issue, such as whether the state Board of Education acted "arbitrarily and capriciously" in forcing the mergers on the town school districts, still needs to be litigated.

"He disposed of as many legal claims as he could," McGillion said. She said right now the lawyers have to file motions for summary judgment by April 30, with cross briefs by May 17, and another argument before Mello on May 29.

"We're still digesting the decision," she said.

Vermont Assistant Attorney General David Boyd, who argued the case on behalf of the Agency of Education, didn't return a call seeking comment.

Contact Susan Smallheer at ssmallheer@reformer.com or at 802 254-2311, ext. 154.


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